Lively v. Ballard

Maxwell, J. The first cause of error assigned is that the court refused to allow the demurrer to be filed to the declaration after the plea of not guilty, pleaded. There can be no error in this because the declaration, though very informally drawn, is substantially good, and the demurrer, if filed, must have been overruled. Parsons vs. Hooper, 16 Gratt., 64; Hood vs. Maxwell, 1 West Virginia Rep., 219, and Beckwith vs. Mollohan, decided by this court, the present term. The second cause of error assigned is that the court erred in refusing to allow the defendant to file his plea, No. 1. This was not error because the matters set up in the plea were not sufficient to bar the plaintiff from recovery. Hood vs. Maxwell, 1 West Virginia Rep., 219. It is claimed that [500] jilea No. 3 was good, and, therefore, there was error not to allow it to be filed. I think this plea not good in substance, and that there was no error in refusing to allow it to be filed. The defendant can only be charged in the writ and declaration as executor generally, for there is no other form whether he be rightful or wrongful executor. Prince vs. Rowson, 1 Modern Rep., 208. Therefore, a good plea of ne ungues executor must aver that the defendant never was executor of the last will and testament of the deceased, and that he never, administered any of the goods and chattels which wore of the deceased at the time of his death, as executor of the last will and testament of the deceased. 3 Ohitty’s Pleadings, 941, and note. The plea offered merely avers that at the time the suit was instituted against the defendant he was not- executor of the last will and testament of the deceased. There was no error in refusing permission to file the defendant’s special plea No. 2, because the plea of not guilty had been entered before the tendering of jilea No. 2, which was double, being the plea of not guilty, and the statute of limitations. The defendant was allowed to jilead the statute of limitations in jilace of his plea No. 2. There was no error in refusing to continue the case on the facts stated in the defendant’s hill of exceptions No 2, on account of the absence of the witness Iieath, because no diligence had been used to take Ms deposition, or to procure his attendance. There was no error in requiring the jury called to try the case, to take the oath jirescribed in the act of 1863 for jurors, because the act is not unconstitutional as claimed by the plaintiff in error. There was no error in refusing to allow the books of the commissioners of the revenue for 1861 to go in evidence to the jury, if for no other reason because they do not appear to have been relevant to the questions before the jury. There was no error in excluding the deposition of the witness Pugh to prove the declarations of Heath, because it does not appear that they were so connected with the case as to constitute part of the res gestee. It cannot be seen [501] from bill of exceptions No. 7 whether the instructions given by the court to the jury at the instance of the defendant below were correct or not, but as the contrary does not appear, they must be presumed to be correct. The judgment appealed from will have to bo affirmed, with damages and costs to the defendant in error. The President concurred. Judgment aebtbmed.